Using Reptile Brain Theory to Help Win or Defeat Malpractice Claims

The scientific principles behind the “reptilian theory of advocacy” might be questionable but they can provide strategic lessons that may be of value to the defense bar, according to speakers at the Spring 2016 National Legal Malpractice Conference.

The conference, presented by the ABA Standing Committee on Lawyers’ Professional Liability, took place April 28-29 in New Orleans.

According to speaker Edward P. Schwartz, a jury consultant with DecisionQuest in State College, Pa., using the theory as a trial strategy is a bit of recycling of some old ideas for trial strategy, dressed in different clothing.

Echoing that idea, fellow speaker Phillip A. Wittmann, of Stone Pigman Walther Wittmann LLC in New Orleans, said some who have examined this theory view it as a re-packaged Golden Rule approach.

The panel focused on how the theory can be used by both the plaintiffs’ bar and the defense bar, including in legal malpractice litigation.

Attendees were encouraged to consider whether the theory can be put to use in the professional liability context of claims against attorneys.

While the theory—if it is credible at all—might be more apropos in the mass tort or other corporate context, it is possible to imagine a plaintiff’s counsel trying to paint a claim against a single “bad” attorney or “bad law firm” as one that can help to eliminate the “danger” that lawyers bring to society.

In fact, the panel shared an example of the use of the tactic in a malpractice case to paint the defendant lawyers as the “big building lawyers” who were evil and not to be trusted while conversely portraying the plaintiff as a poor country boy.

What’s the Reptile Brain Theory?

What is this theory and how can it be (or should it be) used? Is this a re-packaging of the Golden Rule approach? Is it similar to the bad-defendant approach? Or is it a “defendant is pure evil” approach? Can it be used in the context of a legal malpractice action?

The reptilian theory as a trial strategy focuses the potential jury’s attention on anger against the defendant or fear of individuals like the defendant, and encourages the jury to act as the conscience for the community.

The theory was articulated by David Ball, a jury consultant, and Don Keenan, a trial attorney. Ball and Keenan run day-long seminars on the strategy and their website offers visitors a chance to join “the revolution.”

Essentially, Ball and Keenan suggest that a litigator can “scare” the primitive part of jurors’ brains so that they instinctively choose to protect their families and the community by way of a plaintiff’s verdict.

To employ the strategy, a trial attorney focuses on a defendant’s failures in any threatening situation that has allegedly caused the plaintiff’s injury in any type of case. The theory is more often used in personal injury, product liability, medical malpractice and transportation cases.

Bad Science, Good Strategy?

The reptile theory is based on the belief that there are discrete parts of the brain—three to be precise—that reflect the stages of evolution. One of these is the reptile part which is the core of all three. The reptile brain contains humans’ primitive and survival instincts. To effectively use the strategy, the attorney must activate this core part of a juror’s brain and no other.

To activate the reptilian brain, the attorney must “scare the bejeezus out of the jury,” Schwartz said.

He posited that the science behind the theory is silly because humans are generally cognitive beings. In most cases it is difficult to discern just how an attorney could activate this primal fear part of the brain and induce the level of fear required to cause a juror to go into self-preservation mode.

In the context of a legal malpractice action, it seems difficult to imagine how one could effectively elevate the consequences of an attorney’s mistake as presenting a danger to all of society that must be eradicated. A lawyer’s violation of the commitment to public safety would have to be invoked to scare a jury into awarding a plaintiff’s verdict in a legal malpractice action.

From the plaintiff’s perspective, the jury needs to focus on danger so that they will move into “survival mode.”

To use the strategy, the attorney must tell the jury about the dangers of the defendant’s conduct, make the case about public safety rather than this plaintiff, and make the jury identify the plaintiff as a member of their group in society, while the defendant is outside the group.

Plaintiff’s counsel wants to reinforce the jury’s fear responses and eliminate the natural, human inclination for cognition and logic.

In using this tactic, plaintiff’s counsel will downplay the importance of experts and the facts and will strive to reinforce the notion that it is the job of the jury to protect the community.

The natural conclusion must be that the jury will be unable to resist the proposition that the only way to eliminate the threat to the community is to award damages to the plaintiff. Or so those who espouse this theory suggest.

Putting It to Work

Speakers discussed the basic steps of applying the reptilian strategy.

First, the trial attorney must state the safety rule and outline how the defendant violated the rule. To be effective, the rule must be straightforward and easily understood.

Plaintiff’s counsel will then structure deposition questioning to elicit evidence that will force everyone to buy into the theory of rule violation by the defendant.

At voir dire and opening, the plaintiff’s attorney will place a high emphasis on public safety, convince the jury that it is the conscience of the community, and more or less “pander to the jury like crazy,” Schwartz said. The jury will believe that awarding damages will enhance safety and decrease danger to society as a whole.

The way to apply the theory to the jury is to encourage it to “economize on effort” and characterize the questions in terms of what the defendant failed to do. A good “reptile attorney” will have an opening with sentences that are impeccably crafted.

These tactics will not always be permitted. Defense attorneys can do some important things to limit the impact a “reptile attorney” may have on the outcome of the case. For instance, defense counsel should consider motions in limine to try to limit use of the tactic, alert the adversary that defense counsel is on to their plan to use the tactic before the jury, and perhaps succeed in forcing plaintiff into a different plan for trying the case.

‘Reptile Attorneys’ and Malpractice Actions

The panel tried to envision how the reptilian theory could be used in a legal malpractice action and discussed whether it could be an effective trial strategy.

For the Plaintiff

For example, they said, what rule would the plaintiff try to impose on the defendant lawyer to apply the strategy?

If the most important role for an attorney in our society is to protect rights, property and money, the “reptile attorney” will focus the jury’s attention toward recognizing that an attorney’s failure to properly carry out this role would be a catastrophe to society.

Then, perhaps the “reptile attorney” would tell the jury that allowing this defendant attorney to get away with laziness or incompetence is dangerous to the public at large and, thus, it is unacceptable for an attorney to make a mistake.

It might be further suggested to the jury that if this defendant attorney is not stopped, how will society prevent all the other attorneys from acting in a similar way or making the same mistake.

The smart “reptile attorney” will define easily accessible and straightforward rules about attorneys for the jury.

The examples presented are familiar: a lawyer should tell her client everything; a lawyer should meet all deadlines; a lawyer must know the case and the law; an attorney must explain all risks to a client at the beginning of the representation; a lawyer should not make promises the lawyer cannot keep, such as telling a client he has a “slam dunk case”; and senior attorneys should not delegate important matters to junior attorneys.

Perhaps the “reptile attorney,” after defining the rule in the case, will then characterize the rule as one that “every law student learned in the first week of law school.” Thus, in hitting the brain at the reptile core, the jury will not think at all about these “rules” and will be easier to sway in plaintiff’s favor and to award damages to protect society from rule-breaking attorneys.

For the Defendant

Defense counsel, of course, if faced with opposing this approach, would have to convince the rational part of the jury’s mind that strategy decisions are part and parcel of an attorney’s job.

For instance, during voir dire, defense counsel would focus questions toward making the potential jurors think about the things the plaintiff should have done to avoid the loss of which the plaintiff complains.

Conclusion

There was a good deal of skepticism among attendees about whether this theory could be effectively applied to a legal malpractice claim and whether the theory is even legitimate.

At its core, whether it is scientifically supportable or not, the theory can be viewed as a planning strategy for the case. Just like all other strategies, the benefit is that it forces the attorney to begin crafting themes for the case at the outset, which will be honed through depositions, then introduced at voir dire and opening statements.